Khanya Irvin Njobe v Commission for Conciliation, Mediation and Arbitration and Others

The applicant was employed by Sibanye Stillwater as a Security Officer and X-ray Viewer from October 2008. His duties included monitoring X-ray scans of employees exiting a high-risk precious metals refinery and investigating any ‘dark spots’ indicating possible concealment of illicit material. On 24 July 2019, the applicant failed to stop and search an employee after a dark spot appeared on the X-ray scan. He had previously been counselled and warned on multiple occasions for similar conduct. Following a disciplinary enquiry, he was dismissed in May 2020 for gross negligence arising from the 24 July 2019 incident. A colleague involved in similar misconduct, Mr Shilaluke, was not dismissed but counselled due to his clean disciplinary record. The applicant referred an unfair dismissal dispute to the CCMA, where the commissioner found the dismissal substantively fair. The applicant then brought a review application to the Labour Court.

The review application was dismissed. The arbitration award dated 3 May 2021, which found the dismissal substantively fair, was upheld. No order as to costs was made.

The judgment reinforces Labour Court jurisprudence on the Sidumo reasonableness test in review proceedings and confirms that dismissal for gross negligence may be justified in high-risk operational environments, particularly where progressive discipline has failed. It also clarifies that differential treatment of employees does not constitute unfair inconsistency where there is a rational and fair basis for distinguishing between them, such as differing disciplinary records.